Wikileaks cables reveal US pressuring Canada on IP enforcement

The latest Wikileaks cables are a treasure trove of missives documenting US …

"Embassy Ottawa remains frustrated by the Government of Canada's continuing failure to introduce—let alone pass—major copyright reform legislation that would, inter alia, implement and ratify the World Intellectual Property Organization (WIPO) Internet treaties." That's the opening line of a United States embassy dispatch sent to Washington, DC in February of 2008, now published by Wikileaks.

"Given the continuing failure of the GOC [Government of Canada] to introduce a copyright bill into Parliament," the missive continues. . . "Post reluctantly recommends that Canada be elevated to Special 301 Priority Watch List in 2008."

Special 301 is the US Trade Representative's "hall of shame" roster for countries that don't toe the US line on copyright. Canada has repeatedly appeared on its priority list due to its allegedly "weak" implementation of intellectual property rights and border enforcement. "The United States encourages Canada to provide its border officials with the authority to seize suspected infringing materials without the need for a court order," the trade rep added last year.

Canadians don't appreciate this gesture, although the country did introduce a new copyright bill in June of 2010, which we reviewed here. But these new cables highlight the extent to which the US pressures Canada not just via its Special 301 system, but on a regular basis through diplomatic channels.

You assured us

Prime Minster Stephen Harper "told the President last August that Canada would pass copyright legislation," the 2008 message notes. In fact, Harper wrote a personal letter to US Ambassador David Wilkins containing the pledge. "With respect to intellectual property rights, I can assure you that the Government of Canada takes the concerns you have raised in your letter very seriously," he promised the US in April of 2007.

To which Wilkins offered his thanks. "The United States would be pleased to see the legislation include a prohibition against the manufacture and trafficking of circumvention devices and a 'notice and takedown' model with respect to Internet Service Provider (ISP) liability," he wrote back.

And senior Canadian government officials, including Canadian Industry Minister Jim Prentice, "repeatedly assured the Ambassador and senior Mission Canada officers" that copyright legislation would be introduced "soon," the cable continues. In particular, "assurances were given that the legislation had been finalized and would be introduced prior to the Christmas recess, and then again immediately upon Parliament's return in January."

But neither of these actions occurred. Instead came excuses, from the State Department's perspective. Keep in mind while reading the following that the word "tabling" has a different meaning in Canada than it does in the US. In Canada it means putting something on the table for discussion, rather than postponing it:

From December 2007 to mid-February, senior GOC officials and well-informed private sector contacts assured the Embassy that legislative calendar concerns were delaying the copyright bill's introduction into Parliament. Our contacts downplayed the small—but increasingly vocal—public opposition to copyright reform led by University of Ottawa law professor Dr. Michael Geist. On February 25, however, Industry Minister Prentice (please protect) admitted to the Ambassador that some Cabinet members and Conservative Members of Parliament—including MPs who won their ridings by slim margins—opposed tabling the copyright bill now because it might be used against them in the next federal election. Prentice said the copyright bill had become a 'political' issue. He also indicated that elevating Canada to the Special 301 Priority Watch List would make the issue more difficult and would not be received well.

Inside information

How intricately involved is the US in Canadian copyright policy? Consider this Wikileaks cable from August 2007, a message from the Ottawa embassy. In it, Ailish Johnson, economic development policy analyst for Canada's Privy Council Office, is quoted as updating a US embassy officer on Canadian IP developments. The Privy Council provides "essential advice and support to the Prime Minister and Cabinet," in its own words.

The government "is still on track to introduce a new copyright bill to parliament this fall," the message says. "Johnson also revealed that the mandate letters from the Prime Minister to the incoming Ministers of Industry and Canadian Heritage charged both Ministers with introducing a copyright reform bill before the end of the year [our italics]."

We have a plan for you

The Statement Department went so far as to outline an Intellectual Property Action Plan for Canada in 2005. "We have also solicited names of Canadian officials who would be interested in attending USPTO enforcement training," an embassy cable discloses. "We will submit Embassy and Consulates' nominees in the next two weeks."

Initial responses from Canadian federal officials have been very positive, and we hope that this training will provide a good opportunity for networking between enforcement agents on both sides of the border. We understand that DHS [Department of Homeland Security] is willing to host a visit of Canadian officials to the DHS IPR enforcement center (or a video conference). There are also a number of bilateral fora which can be used during the course of the year to address IPR enforcement, including the Cross Border Crime Forum (October 2005) and high-level meetings.

But despite what the US experiences as Canada's repeated failure to fall into line, IP-enforcement-wise, these cables, with their constant references to meetings and discussions, indicate that Washington, DC has no intention of giving up on the cause.

"Despite growing awareness that Canada has become a major international source for pirated DVD movies from U.S. studios, the GOC appears disinclined towards criminalizing the act of camcording in theaters," another 2007 cable discloses. "In essence, there have been numerous meetings, numerous Canadian promises, and seemingly no substantive action on the part of the GOC."

Matthew Lasar
Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz. Emailmatthew.lasar@arstechnica.com//Twitter@matthewlasar